TaxTMI 
TaxTMI 
1982 (12) TMI 222
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Bihar against Respondent No. 2 (Dr. Jagannath Misra), Respondent No. 3 (Nawal Kishore Sinha), Respondent No. 4 (Jiwanand Jha) and three other (K.P. Gupta, since deceased, N.A. Haidari and A.K. Singh, who later became approvers) for offences under ss. 420/466/471/109/120-B I.P.C. and under s. 5(1) (a), 5(1) (b) and 5(1) (d) read with s. 5(2) of the Prevention of Corruption Act, 1947. Inter alia, the gravamen of the charge against the respondent No. 2 was that at all times material he was either a Minister or the Chief Minister of Bihar and in that capacity by corrupt or illegal means or by otherwise abusing his position as a public servant, he in conspiracy with the other accused and with a view to protect Nawal Kishore Sinha in particular, sought to subvert criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others, and either obtained for himself or conferred on them pecuniary advantage to the detriment of Patna Urban Cooperative Bank, its members, depositors and creditors and thereby committed the offence of criminal mis-conduct under s. 5(1) (d) read with s.5(2) of the Prevention of Corruption Act, 1947 and in that process committed the other offe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... he contended that the impugned withdrawal was utterly unjustified on merits and also illegal being contrary to the principles enunciated by this Court governing the exercise of the power under s. 321 Cr. P.C. According to him the decisions of this Court bearing on the nature and scope of the power under the section clearly suggest that for purposes of that section a dichotomy exists between political offences and common law offences and that the considerations of public policy, public interest, reasons of State or political and personal vendetta may become relevant in the case the former cateorgy but are irrelevant while withdrawing from the prosecution of common law offences and since in the instant case the offences with which the accused and particularly Respondent No. 2 had been charged were common law offences, namely, bribery (criminal misconduct) and forgery and not with any political offence the grounds at (b), (c) and (d) mentioned in the application seeking permission for withdrawal were irrelevant and extraneous and non-germane considerations influenced the Public Prosecutor as also the Court the withdrawal is vitiated and is bad in law and as regards ground (a), namely....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f public justice would include appropriate social, economic and political purposes, and what was more in granting its consent to the withdrawal the Court merely performed a supervisory function and in discharging such function the Court was not to reappreciate the grounds which led the public prosecutor to request withdrawal from the prosecution but to consider whether the Public prosecutor had applied his mind as a free agent, uninfluenced by irrelevant or extraneous consideration. It was disputed that the grounds (b), (c) and (d) mentioned in the application seeking permission to withdraw were irrelevant or extraneous or that ground (a) was untenable. According to Counsel in the instant case Shri Lalan Prasad Sinha, being in charge as well as in the conduct of the case was competent to make the application for withdrawal and he had done so after considering all the relevant factors and circumstances bearing on the issue and satisfying himself about it and not at the behest of the Government as contended by the appellant and the learned Special Judge also performed his supervisory function in granting the requisite permission on relevant considerations. Counsel emphatically denied....
X X X X Extracts X X X X
X X X X Extracts X X X X
....98 and the present provision contained in s. 321 (both being substantially in pari materia) were referred to by Counsel for the parties but it is not necessary to deal with all of them and a reference to four decisions, namely, State of Bihar v. Ram Naresh Pandey,(1) State of Orissa v. Chandrika Mohapatra and Ors.,(2) Balwant Singh and ors. v. State of Bihar(3) and R. K. Jain v. The State(4) having a bearing on the aspects under consideration will suffice. These decisions, apart from enunciating the principles which would govern the exercise of the power under the section, emphasise the functional dichotomy of the Public Prosecutor (who performs an executive function) and the Court (which performs a supervisory judicial function) thereunder. In Ram Naresh Pandey's case (supra) the Court while dealing with s. 494 of the old Code observed thus. "The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be ..... There can be no doubt, however, that the resultant order o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e advanced or furthered by going on with the prosecution. The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn." It may be stated that Criminal Appeal No. 310 of 1975 was one of the appeals decided by the Court in that case. In that appeal the incident, during the course of which offences under ss. 147, 148 149, 307 and 324 I.P.C. were said to have been committed, had arisen out of rivalry between two trade unions and since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking and in those circumstances the State felt that it would not be conducive to interest of justice to continue the prosecution against the respondents since the prosecution with the possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking and hence permission to withdraw was sought and granted. Upholding the permission the Court observed thus: "We cannot forget that ultimately ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion to someone else. 3. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 4. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but no other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes Sans Tammany Hall Enterprises. 5. The Court performs a supervisory function granting its consent to the withdrawal. 6. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution." By way of elaborating proposition No. 4 above, the Court has gone on to observe thus: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to the matter before it, must not act under the dictates of another body must not do what it has been forbidden to do, must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act and not must act arbitrarily or capriciously These several principles can conveniently be grouped in two main categories failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive." (vide de Smith's judicial Review of Administrative Action 4th Edition pp. 285-86) Secondly, since the trial Court's supervisory function of either granting or refusing to grant the permission is a judicial function the same is liable to correction by the High Court under its revisional powers both under the old as well as the present Code of Criminal Procedure, and naturally this Court would have at least co-extensive jurisdiction with the High Court in an appeal preferred to it by special leave or upon a certificate by the High Court. Thirdly, no dichotomy as such b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is obvious that unless the crime in question are per se political offences like sedition or are motivated by political considerations or are committed during or are followed by mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or the like situations involving emotive issues giving rise to an atmosphere surcharged with violence, no question of serving any broader cause of public justice public order or peace would arise and in the absence thereof the public interest of administering criminal justice in a given case cannot be permitted to be sacrificed, particularly when a highly placed person is allegedly involved in the crime, as otherwise the common man's faith in the rule of law and democratic values would be shattered. Fourthly, the decision in R.K. Jain's case (supra) clearly shows that when paucity of evidence or lack of prospect of successful prosecution is the ground for withdrawal the Court has not merely the power but a duty to examine the material on record without which the validity and propriety of such ground cannot be determined. In that case this Court disposed of two sets of appeals, one where the withdrawal from....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the withdrawal from the prosecution and if so whether he discharged his function independently as a free agent ? In this behalf Counsel urged that the initial appointment of Shri A.K. Dutt as the Special Public Prosecutor made by the State Government under s. 24 (8) Cr. P.C. On 26th February, 1979 to conduct this case had not been cancelled, that Shri Lalan Prasad Sinha could merely be regarded as one of the four Public Prosecutors appointed on the fresh panel constituted under Law (Justice) Department's letter No.C/Mis-8-43/78 J dated 24th February, 1981 and that though this particular case had been allotted to him by the letter dated 25th February, 1981, he had no authority over the head of Shri A.K.Dutt to apply for withdrawal from the prosecution and as such the application made by him would be unauthorised and illegal and consequently the Court's order dated 20th June, 1981 would be vitiated. Counsel further contended that the State Government had already taken a decision to withdraw from the prosecution in this case on grounds of inexpediency of prosecution for reasons of State and public policy, that the said decision was communicated to Shri Lalan Prasad Sinha, who ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ad held that "the reasonable interpretation to be placed upon s. 494, in our opinion, is that it is only the Public Prosecutor, who is incharge of a particular case and is actually conducting the prosecution, that can file an application under that section, seeking permission to withdraw from the prosecution." The same view was reiterated by this Court in the Case of M.N.S. Nair v. P.V. Balkrishnan (supra). The present section 321 Cr. P. C. has given legislative recognition to the aforesaid view of this Court inasmuch as it expressly provides that the Public Prosecutor "incharge of a case" may withdraw from the prosecution with the consent of the Court. We are satisfied that though he was appointed as the Special Public Prosecutor to conduct this case in February 1979 Shri A.K. Dutt was neither incharge of the case nor was actually conducting the same at the material time and since Shri Lalan Prasad Sinha was not merely incharge of the case but was actually conducting the case was the proper officer to apply for the withdrawal from the prosecution. Similarly, there is no substance in the contention that Shri Lalan Prasad Sinha had sought the withdrawal from the prosecution at th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the prosecution for the reasons of the State and Public policy and (d) the adverse effects that the continuation of the prosecution will bring on public interests in the light of the changed situation. Significantly enough the learned Special Judge after summarising the submissions of Shri Lalan Prasad Sinha, which were in terms of the averments made and the grounds set out in the application, passed a short reasoned order on 20th June, 1981 as follows: Having considered the legal position explained by the Supreme Court (in R.K. Jain's case) and submissions made by the learned Special P.P. in charge of this case and having perused the relevant records of the case I am satisfied that it is a fit case in which prayer of the learned Special P.P. to withdraw should be allowed and it is, therefore, allowed. Consequently the special P.P. Shri Lalan Prasad Sinha is permitted to withdraw from the prosecution and in view of section 321 (a) Cr. P. C. the accused persons are discharged." In other words, the learned Special Judge accepted all the grounds on which withdrawal was sought and granted the permission to withdraw from the prosecution on those grounds. The question....
X X X X Extracts X X X X
X X X X Extracts X X X X
....character nor were committed in nor followed by any explosive situation involving emotive issue giving rise to any surcharged atmosphere of violence no question serving any broader cause of public justice, public order or peace could arise and in absence there of the public interest of administering criminal justice in this particular case could not be permitted to be sacrified. In other words, this being an ordinary criminal case involving the commission of common law crimes of bribery and forgery in ordinary normal circumstances with self-aggrandisement or favouritism as the motivating force, grounds (b), (c) and (d) were irrelevant and extraneous to the issue of withdrawal and since admittedly these were the considerations which unquestionably influenced the decision of the public prosecutor in seeking the withdrawal as well as the decision of the trial Court to grant the permission, the impugned withdrawal from the prosecution would stand vitiated in law. Counsel for the respondents urged that as a result of the elections there was a change in the situation, that Respondent No. 2's party had received the peoples' mandate and voted to power, that Respondent No. 2 h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....circumstances, grounds (b), (c) and (d) were not attracted to the instant case and were irrelevant and extraneous to the issue of withdrawal and since these grounds had influenced the executive function of the Public Prosecutor as well as the supervisory judicial function of the trial Court the performance of these functions is vitiated. The High Court has simply put its seal on the trial Court's order accepting these grounds. The impugned withdrawal as permitted by the trial Court and confirmed by the High Court in so far as it is based on these grounds would be bad in law. I shall now proceed to deal with the ground (a) that was put forward for withdrawal from the prosecution. In substance the ground was that there were no chances of successful prosecution in view of paucity of evidence to prove the charges. As stated earlier when such is the ground it is the duty of the Court to examine the material to ascertain whether the ground was valid one or whether the available material was sufficient to make out a prima facie case against the accused to put him on trial ? And I shall approach the problem strictly from this angle. The facts giving rise to the launching of the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the basis of these audit reports at the instance of the Reserve Bank the management of the Bank through its Board of Directors was superseded on 10th of July, 1974 under the orders of the Registrar, Co-operative Societies, and Nawal Kishore Sinha the Chairman and other Directors on the Board were removed and an officer of the Co-operative Department, Government of Bihar, was appointed as the Special Officer to look after the affairs of the Bank. On the strength of the aforesaid Audit Reports the Registrar, Co-operative Societies, agreeing with the Joint Registrar, put up a note dated 4.11.1974 to the Secretary, Co-operative saying that prima facie charges of defalcations, conspiracy, etc. were made out against the officials of the Bank and legal action be taken against them after taking the opinion of the Public Prosecutor; the Secretary by his note dated 7.11.1974 sought the opinion of the Law Department on 18.11.1974 the Law Department recorded its opinion in the relevant file (being File No. IX/Legal- 9/75 of the Department of Co-operation) that a case of conspiracy and criminal breach of trust against the loans and office bearers of the Bank was prima facie made out. On 16.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....note dated 29-8-1974 addressed to the Chief Secretary and circulated to various departments had, with a view to lessen his heavy burden, requested Respondent No. 2 (Jagan Nath Mishra) to look after the work of the Law Department and as such endorsing the file on 24.2.1975 'to the Law Minister en-route the Chief Minister' would mean that the file must have gone to respondent No. 2 as there was no other person holding the Law portfolio excepting the Chief Minister himself under the Notification dated 30th April, 1974. It is claimed by the appellant that Respondent No. 2 sat tight over the file for over two and half months till he became the Chief Minister whereas it is suggested on behalf of the Respondents that though the file was called for by Respondent No. 2 on 24-1-1975 it did not actually reach him till middle of May, 1975. However, ignoring the aforesaid controversy, the fact remains that the filing of the complaint got postponed from 24-1-1975 (the date of Buff- sheet order of Respondent No. 2) till middle of May, 1975 and in the meantime on 11.4.1975 Respondent No. 2 replaced Shri A. Gaffoor as the Chief Minister and in the middle of May 1975 as the Chief Minister Re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion, runs thus: "Please issue order for restoring the normal condition in the Bank after holding Annual General Meeting. (Sd) Jagan Nath Mishra 14-5-1975" It is undisputed that Respondent No. 2 did pass the aforesaid two orders in his own hand in Hindi, the first on 16-5-1975 and the second subsequently in point of time but ante-dated it to 14-5-1975 and had it pasted over the first order completely effacing that order. Such conduct on his part has been explained only on the basis that as the Chief Minister he had the authority and power to revise or review his earlier order and that it is the usual practice prevailing in the Patna Secretariat that whenever any order passed earlier is sought to be revised or reviewed by the same officer or Minister it is done by pasting it over by a piece of paper containing the revised orders (Para 8 of the counter affidavit of Shri Bidhu Shekhar Banerjee dated 17-3- 1982 filed on behalf of respondent No. 1). Even with this explanation the admitted position that emerges is that the aforesaid two orders were passed by respondent No. 2, that the second order was ante-dated to 14-5-1975 and that the same was pasted on the file s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....same actually materialising) it will be forgery. The aforesaid undisputed documentary evidence comprising the Audit Reports, the relevant notings in the concerned file and the two orders of Respondent No. 2 clearly makes out a prima facie case of the commission of two common Law offences of criminal mis-conduct s. 5(1) (d) of Prevention of Corruption Act) and forgery (s. 466 I.P.C.) by Respondent No. 2 without needing any further material to establish the same. The ingredients of the former can be said to be prima facie satisfied in that by passing the two orders Respondent No. 2 by corrupt or illegal means or by otherwise abusing his position as the Chief Minister subverted the criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others and had thereby at any rate obtained for them pecuniary advantage to the deteriment of the Bank, its members, depositors and creditors. This is apart from the aspect as to whether while doing so he obtained pecuniary advantage for himself or not, for which further material by way of confessional statement of the approvers would be required to be considered or appreciated but ignoring such further material the ingredient....
X X X X Extracts X X X X
X X X X Extracts X X X X
....till he went out of power in 1977 and in this behalf it would be desirable to delineate the course which the subsequent events took in regard to criminal prosecution as well as surcharge proceedings separately. As regards criminal prosecution, it appears that the Co-operative Department wanted to go ahead with it and in that behalf by his next noting dated 28-6- 1975 the then Minister for Co-operation sought directions from the Chief Minister as to what should be the next course of action in the matter of filing the complaint and Respondent No. 2 as the Chief Minister passed the following order on the file on 30-6-1975: "Discussion has been held. There is no need to file the prosecution." This clearly show what Respondent No. 2 intended by his aforesaid two orders in the matter of criminal prosecution and the direction clearly runs counter to the suggestion that he did not thwart, scuttle or subvert the criminal prosecution against Nawal Kishore Sinha and others. It further appears that in July, 1975 there were questions and call attention motions in the Bihar Legislative Assembly during the course of which the propriety of non-prosecution of the culprits concerned in the Bank frau....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icence of the Patna Urban Co-operative Bank was cancelled by the Reserve Bank of India and further at the instance of the Registrar, Co-operative Societies, the Bank was ordered to be liquidated. It appears that Shri T. Nand Kumar, I.A.S., Liquidator of the Bank addressed a communication to the Registrar, Co-operative Societies suggesting that besides the other office-bearers Sri Nawal Kishore Sinha, the ex- Chairman of the Bank also deserve to be prosecuted for offences of embezzlement, forfery, cheating, etc. but the matter was kept pending for report of the Superintendent of Police (Co-operative Vigilance Cell); the S.P. (Co-operative Vigilance Cell) after collecting facts and evidence got it examined by Deputy Secretary (Law) in C.I.D., obtained the opinion that a criminal case was fully made out against Shri Nawal Kishore Sinha and proposed that a fresh criminal case as per draft F.I.R. be filed and that Shri Nawal Kishore Sinha should also be made co-accused in a number of cases already under investigation, the S.P. (Co-operative Vigilance Cell) obtained the approval of D.I.G., C.I.D. on his said proposal and submitted the same to the Secretary, Co-operation, for obtaining Ch....
X X X X Extracts X X X X
X X X X Extracts X X X X
....annot take any credit whatsoever. On the other hand, the subsequent events show that so long at it lay within his power Respondents No. 2 made every effort to protect and save Nawal Kishore Sinha from criminal prosecution by abusing his official position-a criminal prosecution which had been proposed by independent bodies like the Reserve Bank of India and the Co-operative Department, agreed to by the Law Department, recommended by the Estimates Committee and ultimately approved by the Governor Shri Jagan Nath Kaushal. As regards the surcharge proceedings the position is very simple. As discussed earlier, the two directions contained in the first order dated 16-5-1975 for taking stern action to realise loans from the loanees and in default to initiate surcharge proceedings against the Board of Directors were wiped out by the subsequent ante-dated order 14-5-1977, and thereby Respondent No. 2 thwarted surcharge proceedings and attempted to give a go bye to the civil liability of Nawal Kishore Sinha and other office- bearers of the Bank. This conduct on the part of Respondent No 2 has been explained in the counter affidavit of Shri Vinod Kumar Sinha dated 8-10-1982 filed before us....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the result that Respondent No. 2 had no knowledge of either the notings and orders contained therein or what was being done in the office of the Deputy Registrar, Co-operative Societies, when he passed either of the two orders dated 16-5-1975 and 14-5-1975 and the explanation, therefore, that Respondent No. 2 facilitated the filing of the surcharge proceedings by the office of the Deputy Registrar, without the necessity of proceeding against the loanees first, is not candid. Secondly, the proposal for surcharge proceeding itself was submitted and filed by the District Co-operative Officer against Nawal Kishore Sinha and others on 10-6-1975 and the surcharge proceedings actually could be said to have been initiated on 1-7-1975, when show cause notice was directed to be issued and served on Nawal Kishore Sinha on 15-7-1975, while thwarting of the surcharge proceedings against Nawal Kishore Sinha and others was already complete, having been accomplished by Respondent No. 2 by his ante-dated order 14- 5-1975. Thirdly it is obvious that Respondent No. 2 cannot take credit for the action that was taken in the matter of surcharge proceedings against Nawal Kishore Sinha and others by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the aforesaid evidence came into existence. As far as Respondent No. 3 (Nawal Kishore Sinha) and Respondent No. 4 (Jiwanand Jha) are concerned it cannot be forgotten that they have been arraigned alongwith Respondent No. 2 on a charge of criminal conspiracy in pursuance whereof the several offences are said to have been committed by all of them. Further it is obvious that the principal beneficiary of the offence of criminal misconduct said to have been committed by Respondent No. 2 under s. 5 (1) (d) read with s. 5 (2) of Prevention of Corruption Act, 1947 has been Respondent No. 3 and so far as Respondent No. 4 is concerned it cannot be said that there is no material on record suggesting his complicity. Admittedly, he has been very close to Respondent No. 2 for several years and attending to his affairs-private and party affairs and the allegation against him in the F.I.R. is that he was concerned with the deposit of two amounts of Rs. 10,000 and Rs. 3,000 on 27.12.1973 and 1.4.1974 in the Savings Bank Account of Respondent No 2 with the Central Bank of India, Patna Dak Bungalow Branch, which sums, says the prosecution, represented some of the bribe amounts said to have been re....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2 was in respect of the offence of criminal misconduct under s. 5 (1) (d) read with s. 5 (2) of Prevention of Corruption Act, 1947 and the offence under s. 5 (1) (c) was nowhere mentioned or referred to. The difference between s. 5 (1) (d) (bribery amounting to criminal mis-conduct) and s. 5 (1) (c) (breach of trust amounting to criminal mis-conduct) is substantial, each having different ingredients but in the application for withdrawal filed by Shri Lalan Prasad Sinha on 17th June, 1981 he stated that withdrawal from the prosecution in Vigilance Case No. 9 (2) 78 was sought in respect of several offences including the offence of criminal mis-conduct under s. 5 (1) (c) read with s. 5 (2) of the Prevention of Corruption Act and through out the application there was no reference to the offence of criminal mis-conduct under s. 5 (1) (d) read with s. 5 (2) of the said Act. In other words, an offence under s. 5 (1) (c) read with s. 5 (2) with which Respondent No. 2 had never been charged was mentioned and the offence under s. 5 (1) (d) read with s. 5 (2) with which he was principally charged was completely omitted. Obviously submissions contained in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs of the Bank. The report was submitted to the Co-operative Department whereupon the Joint Registrar, Cooperative Audit Department, recommended legal action against the Directors of the Bank. The legal assistant of the Department submitted a draft prosecution report prepared by the Public Prosecutor with a suggestion that the Registrar of the Cooperative Department should obtain the opinion of the Law Department on the draft prosecution report. The Registrar agreed to send the draft prosecution report to the law Department but expressed desire that the Minister in charge of the Cooperative Department should see the report. Accordingly the file was endorsed to the Minister in charge of the Cooperative Department. The then Chief Minister, Shri Abdul Gafoor, signed it by way of agreement with the Registrar to obtain the advice of the Law Department and approved the First Information Report (FIR). The Secretary of the Cooperative Department then requested the Public Prosecutor to amend the draft FIR which was sent to the Law Department for opinion. The Law Department returned the file to the Cooperative Department stating that it had already given its opinion and that it was not its d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions had been held and that there was no need to file any case. On August 4, 1976, the Chief Minister ordered for the prosecution of the office bearers and loanees of the bank including its honorary Secretary, Shri K.P. Gupta, Manager, Shri M.A. Haidari (hereinafter `Haidari') and the loan clerk. 4. There was a mid-term poll to the Lok Sabha in March, 1977. In that poll, the Congress (I) Government at the Centre was voted out of power and the Janata Government was installed with Shri Morarji Desai as the Prime Minister and Chaudhury Charan Singh as the Home Minister. In April following, the Patna Secretariat Non-gazetted Employees' Association submitted a 25 point representation against Respondent No. 2 to the Prime Minister and the Home Minister of the Union Government apprising them of the irregularities of the Bank. In June following, the Congress (I) Government of Bihar headed by Respondent No. 2 was replaced by Janata Government headed by Shri Karpoori Thakur. The said Employees' Association on July 9, 1977 submitted a copy of the representation to the new Chief Minister, Shri Karpoori Thakur, with a request for making an enquiry into the allegations by an Enqui....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... In November, 1977, one Shri D.P. Ojha was posted as S.P., Vigilance, by the Chief Minister, Shri Thakur and the inquiry was endorsed to Shri Ojha. 6. It has been alleged by the respondents that in January, 1978, some Inspectors of the CID like Raghubir Singh, Sharda Prasad Singh, Ram Dahin Sharma and others were transferred to Vigilance Department and they were responsible for the investigation of the major portions of the case in question, and that all the criminal cases investigated by D.S.Ps. (CID), Bihar, relating to the Bank were transferred to Vigilance Department and placed under the charge of the Inspector, Shri Raghubir Singh. Haidari, aforesaid, who had been an accused of Kadam Kuan P.S. case and arrested and who had made a confessional statement was rearrested by the investigating officer, Shri Raghubir Singh on 22.1.1978. Haidari made a second confession implicating Respondent No. 2 for the first time. On 26.1.1978, A.K. Sinha who was also rearrested made a confession. On 28.1.1978. D.P. Ojha, aforesaid, submitted his inquiry report recommending institution of criminal cases against Respondent No. 2 and others. Similar recommendations were also made by Shri S.B. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f inexpediency of prosecution for reasons of State and public policy. You are, therefore, requested to direct the public Prosecutor to pray the Court after himself considering for the withdrawal of the above mentioned two cases for the above reasons under Section 321 of the Code of Criminal Procedure. Please acknowledge receipt of the letter and also intimate this Department about the result of the action taken. Yours faithfully, Sd/- Illegible Secretary to Government, Patna. Memo No. MW 26/81, 1056 J. Patna, dated 25th February, 1981. Copy forwarded to Vigilance Department for information. Sd/- Illegible Secretary to Government, Bihar. Patna". (emphasis added) 11. Accordingly, on 17.6.1981, Shri L.P. Sinha filed an application under section 321 of the Code. On 20.6.1981, the Special Judge passed the impugned order giving his consent to withdraw the case. 12. It may be noted at this stage that before the impugned order was passed, the appellant filed an application under section 302 of the Code and the learned Judge held that the appellant had no locus standi i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ic Prosecutor or Assistant Public Prosecutor is the only competent person to withdraw from the prosecution of a person; (2) that he must be in charge of the case; (3) that the withdrawal is permissible only with the consent of the Court (before which the case is pending). As stated above, Shri A.K. Datta was appointed Special Public Prosecutor for conducting the case in question vide order under letter No. C/Special/04/79 which reads thus (material portion only): "Letter No. C/Special/04/79 Government of Bihar Law (Justice) Department From Shri Yogehwar Gope, Under Secretary to the Government of Bihar. To Shri R.N. Sinha, District Magistrate, Patna. Patna, dated February, 1979. Subject: Appointment for conducting Vigilance P.S. Case No. 9 (2) 78 and 53 (8) 78 State Versus Dr. Jagannath Mishra, ex-Chief Minister and others. Sir, I am directed to say that the State Government have been pleased to appoint Shri Awadhesh Kumar Datta, Senior Advocate, Patna High Court, as Special Public Prosecutor for conducting vigilance P.S. Case Nos. 9 (2) 78 and 53 (8) 78 in which Dr. Jagannath Mishra, ex-Chief Minister, is the main accused. 2. The order for appointing Junior Adv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat Shri L P. Sinha was appointed a Public Prosecutor. 16. The State Government may appoint a Special Public Prosecutor under sub-section (8) of Section 24 of the Code for the purpose of any case or classes of cases. Public Prosecutor has been defined under clause (u) of Section 2 of the Code as: "2(u)-"Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor,, In the case of State of Punjab v. Surjit Singh and another,(1) a Bench of five Judges of this Court considered the provisions of Section 492 to 495 of the old Code dealing with the appointment of Public Prosecutor. The Court observed: "Public Prosecutors are appointed by the State Government under section 492(1) or by the District Magistrate or the Sub-Divisional Magistrate, under sub-section (2) of section 492. The appointment, under sub-section (1) of section 492 can be a general appointment or for a particular case, or for any specified class of cases, in any local area. Under this provision more than one officer can be appointed as Public Prosecutors by the State Government. Under sub-section (2), the appointment of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and function.. The official acts of such persons are recognised as valid on grounds of public policy, and for the protection of these having official business to transact". This Court in Gokaraju's case (supra) also quoted with approval the following passage from Colley's 'Constitutional Limitation': "An intruder is one who attempts to perform the duties of an office without authority of law, and without the support of public acquiscence- No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private right, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Special Secretary to Government". (emphasis added). Shri L.P. Sinha had been appointed a Government counsel on 24.2.1981 to conduct vigilance cases as stated above. The application for withdrawal was made by him on 17.6.1981-more than four months later. After having been appointed Public Prosecutor, and having been put in charge of the Vigilance P.S. Case No. 9(2)78, he appeared in the case on seven dates, namely, 6.4.1981, 21.4.1981, 27.4.1981, 26.5.1981, 3.6.1981, 19.6.1981 and 20.6.1981. It has been stated in the affidavit filed by the Secretary, Law Department of the State of Bihar that the order disclosed that "no one else appeared for the prosecution" except S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....secutor is not an absolutely independent officer. He is an appointee of the Government, Central or State (see ss. 24 and 25 Crl. P.C.), appointed for conducting in Court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and the Government. A Public Prosecutor cannot act without instructions of the Government a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government. Take an extreme hypothetical case, in which Government is the prosecutor, and in which there is a prima facie case against an accused, but the Government feels on the ground of public policy, or on the ground of law and order, or on the ground of social harmony, or on the ground of inexpediency of prosecution for reasons of State, the case should not be proceeded with; the Government will be justified to express its desire to withdraw from the prosecution and instruct the Public Prosecutor to take necessary legal steps to withdraw from the prosecution. Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any inst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce of the prosecution was broadly examined both by the State Government and also by me. Keeping in view (a) lack of prospect of successful prosecution in the light of evidence, (b) the implication of the persons as a result of political and personal vendetta, (c) the inexpediency of the prosecution for the reasons of the State and public policy, (d) the adverse effects that the continuation of the prosecution will bring on public interests in the light of the changed situation, and after giving anxious considerations and full deliberations, I beg to file this application to withdraw from the prosecution of all the persons involved in the aforesaid case: 3. That I have, therefore, gone through the case diary and the relevant materials connected with the case and have come to the conclusion that in the circumstances prevailing at the time of institution of the case and the investigation thereof, it appears that the case was instituted on the ground of political vendetta and only to defame the fair image of Dr. J.N. Mishra, who was then the leader of the opposition and one of the acknowledged leaders of the Congress party in the country. The prosecution was not launched in order to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as judicially laid down by this Court. Learned counsel cited the following decisions of this Court reported in State of Bihar v. Ram Naresh Pandey(1), State of Punjab v. Surjit Singh and Ors.(2), M.N.S. Nair v. P.V. Balakrishnan & Ors.(3), Bansi Lal v. Chandan Lal(4), State of Orissa v. Chandrika Mohapatra and Ors.(5), Balwant Singh and Ors. v. State of Bihar(6), Rajindera Kumar Jain's case(7). We need not refer to all these decisions except to Rajindra Kumar Jain's case (supra), hereinafter referred to as "George Fernandes' Case", in as much as, this decision has considered all the earlier decisions, and summarised the observations as under : "Thus from the precedents of this Court; we gather, (1) Under the Scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. (2) The withdrawal from the prosecution is an executive function of the Public Prosecutor. (3) The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. (4) The Government may suggest to the Public Prosecutor that he may withdraw from the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s right minded, seek advice and guidance from the policymakers. His sources of information and resources are of a very limited nature unlike those of the policy-makers. If the policy-makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over words". (emphasis added). This decision is a complete answer to the contention raised by learned counsel of the appellant that a triable case cannot be withdrawn. Paucity of evidence is only one of the grounds of withdrawal. 22. Faced with this decision learned counsel submitted that the case in hand was a case involving common law offences while George Fernandes case (supra) was dealing with political offences, which offences only, according to counsel, can be permitted to be withdrawn from prosecution. We are unable to accept the submission. (Section 321 has not dichotomised int....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the said Emergency and to overthrow the Government and that he committed various acts in pursuance of that object. The investigating agency submitted a charge sheet against Shri Fernandes and twenty- four others for offences under section 121-A, 120-B, Penal Code, read with sections 4, 5 and 6 of the Explosive Substances Act, 1908 and sections 5(3) (b) and 12 of the Indian Explosives Act, 1884. Two of the accused persons had been tendered pardon. They had, therefore, to be examined as witnesses in the Court of the Magistrate taking cognizance of the offences notwithstanding the fact that the case was exclusively triable by the Court of Sessions. The evidence of the approver was recorded on March 22, 1977 and the case was adjourned to March 26, 1977 for further proceedings. At that stage, on March 26, 1977, Shri N.S. Mathur, Special Public Prosecutor filed an application under section 321 of the Code, for permission to withdraw from the prosecution. The application reads : "It is submitted on behalf of the State as under :- 1. That on 24.9.1976, the Special Police Establishment after necessary investigation had filed a charge sheet in this Hon'ble Court against Shri Geor....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... broad ends of public justice, economic and political; public order and peace are valid grounds for withdrawal. The exercise of the power to accord or withdraw consent by the Court is discretionary. Of course, it has to exercise the discretion judicially. The exercise of the power of the Court is judicial to the extent that the Court, in according or refusing consent, has to see (i) whether the grounds of withdrawal are valid; and (ii) whether the application is bona fide or is collusive. It may be remembered that the order passed by the Court under section 321 of the Code, either according or refusing to accord consent, is not appealable. A mere perusal of the impugned order of the Special Judge shows that he has applied his mind to the facts of the case and also applied his mind to the law laid down by this Court in Geroge Fernandes case that has summarised the entire law on the point, and correctly applied them to the facts of this case. It is therefore not correct to say that the decision of the Special Judge was contrary to the law laid down by this Court. 25. The only other submission of the appellant is that there is a prima facie case for trial by the Special Judge an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9;s petition opposing withdrawal, learned counsel submitted that there was a prima facie case for trial by the Special Judge and the case should be remanded to him for trial. Let us examine that aspect also as it has been argued at length. Learned counsel fairly concedes that he does not take much reliance on oral evidence but takes strong reliance on two pieces of documentary evidence, namely, alleged creation of forged documents by Dr. Mishra and the confessional statement of Haidari implicating Dr. Mishra. Elaborate arguments were advanced by learned counsel of the parties on the piece of documentary evidence which, according to the appellant's counsel would form the basis of conviction of Respondent No. 2. That documentary evidence was that Respondent No. 2 as Chief Minister passed an order on 16-5-1975 in Hindi. English translation of this order reads as follows : "Much time has passed. On perusal of the file, it appears that there is no allegation of defalcation against the Chairman and the Members of the Board of the Bank. Stern action should be taken for realisation of loans from the loanees and if there are difficulties in realisation from the loanees, surchar....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... The Chief Minister's finding that there was no allegation of defalcation against the Chairman and Members of the Board; (ii) Direction to take stern action for realisation of the loans from the loanees; (iii)Directions to initiate surcharge proceedings in case of difficulties in realisation; (iv) Direction to call the annual General Meeting of the Bank and hold election in order to restore the normal condition of the Bank. Only the portions against (i), (ii) and (iii) above have been covered by pasting the fresh order which is but (iv) above. The appellant's submission is that by covering the first three directions, Respondent No. 2 shielded Respondent No. 3 and others from realizing the due from the culprits including Respondent No. 3 or from initiating surcharge proceedings against them. The answer to the contention is three-fold: (i) The order of surcharge by the Chief Minister is unwarranted by law. Section 40 of the Bihar Cooperative Societies Act, 1935 gives power only to the Registrar to initiate surcharge proceedings. An appeal lies from his order to the State Government under sub-section (3) of section 40. In fact, admittedly Deputy Registrar of Coo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....confessional statement, there was no need for him to make a second confessional statement on 24-1-1978. It may be remembered that on that date, Vigilance Case No. 9 (2) 78 had not yet been registered and Haidari was not an accused in this case and therefore it cannot be said that the confessional statement on which great reliance has been placed by the appellant was a confessional statement made by an accused. This case was registered at the Vigilance Police Station in the morning on 1-2-1978 and, therefore, to give legal validity to the confessional statement it was shown recorded in Kadam Kuan case No. 97 (5) 77. This confessional statement is said to be the second confessional statement of Haidari in the same Kadam Kuan case. Haidari's so-called confessional statement therefore is not only not a confessional statement of a co-accused but it inspires no confidence. On the top of it, it was the statement of an accomplice turned approver, and is worthless. 31. The submission of the respondents that the criminal case against Respondent No. 1 is the result of political vendetta has also to be considered. (i) The first circumstance pointed out by the respondents in this rega....
X X X X Extracts X X X X
X X X X Extracts X X X X
....suggestion appears to have substance. Shri D.P. Ojha was a Superintendent of Police in Bihar. It has been stated in the counter-affidavit filed by Respondent No. 4 that he (Ojha) has been indicted by Justice Mathew in his report submitted on 9.5.1975 relating to the murder of Shri L.N. Mishra, brother of Respondent No. 5. Justice method in his report held: "The direct responsibility for making security arrangements under the security instructions dated 13-9-1971 issued by the Central Government devolve on the head of the Police (Shri D.P. Ojha). The Commission finds that the S.P. Samastipur failed to discharge the duty enjoined upon him by the instruction dated 13.9.1971 issued by the Central Government. The S.P. Samastipur was guilty of derelication of duty in this respect. The officer who failed to discharge their duty or were negligent of the performance of same could be directly responsible to the State Government and the State Government to be the agency for taking appropriate action against them." It has been stated in affidavit that the Janata Government at the Centre had accepted the said findings of the Mathew Commission. But the Government of Bihar headed by Shri Ka....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r trial: (i) The occurrence took place as early as 1970; it is already more than twelve years. (ii) Respondent No. 2 is the Chief Minister in his office. Knowing human nature, as it is, it can hardly be expected that the witnesses, most of whom are officials, will come forward and depose against a Chief Minister. (iii) Even after the assumption of office by Respondent No. 2 the Chief Minister, in the Court of the Special Judge, the prosecution was pending on several dates but the Public Prosecutor, Shri A.K. Datta, did not take any interest in the case at all. It cannot be expected that a Public Prosecutor appointed by the Government in power, will now take interest and conduct the case so as to secure conviction of his own Chief Minister. Remand for trial, if made, will be a mere exercise in futility; and it will be nothing but an abuse of the process of the Court to remand the case to the trial Court. 34. As a result of the foregoing discussions, the appeal is dismissed. MISRA, J. I have the privilege of perusing the differing judgments of brothers Tulzapurkar and Baharul Islam JJ. While I respectfully agree with some of the findings reached by brother Tulzapurkar,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hra, who was then the leader of the opposition and one of the acknowledged leaders of the Congress Party in the country. The prosecution was not launched in order to advance the interest of public Justice." Para 4 reads: "That it is in public interest that the prosecution which has no reasonable chance of success and has been launched as a result of political vendetta unconnected with the advancement of the cause of public justice should not proceed further. More so, as the same is directed against the head of the Executive in whom not only the electorate have put their faith and confidence but whom has been elected leader of the majority party in the legislature, both events have taken place after the institution of the case." The application was opposed on a variety of grounds by the appellant, which I shall deal with in the later part of the judgment in detail. The application was, however, allowed by the Chief Judicial Magistrate-cum-Special Judge Vigilance and he accorded his consent by his speaking order dated 20th June, 1981. The appellant took up the matter in revision to the High Court which also confirmed the order of the trial court. The appellant has now ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or the exercise of the power of withdrawal under this section by the Public Prosecutor or by the court according its consent to such withdrawal. It is in the light of those guidelines that the propriety or the legality of the withdrawal of criminal proceeding has to be judged. In this country the scheme of criminal justice places the prime responsibility of prosecuting serious offences on the executive authority. The investigations, collection of requisite evidence and the prosecution for the offences with reference to such evidence are the functions of the executive. The function of the court in this respect is a limited one and intended only to prevent the abuse. The function of the court in according its consent to withdrawal is, however, a judicial function. It, therefore, becomes necessary for the court before whom the application for withdrawal is filed by the Public Prosecutor to apply its mind so that the appellate court may examine and be satisfied that the court has not accorded its consent as a matter of course but has applied its mind to the grounds taken in the application for withdrawal by Public Prosecutor. The guiding principles laid down by the various decisi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Government as a matter of general policy of expediency unconnected with its duty to prosecute offenders under the law, directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest." "It appears to us that the wide and general powers which are conferred under Sec. 494 on the Public Prosecutor to withdraw from the prosecution though they are subject to the permission of the Court have to be exercised by him in relation to the facts and circumstances of that case in furtherance of, rather than as a hindrance to the object of the law and justified on the material in the case which substantiate the grounds alleged, not necessarily from those gathered by the judicial method but on other materials which may not be strictly on legal or admissible evidence. The Court also while considering the request to grant permission under the said Section should not do so as a necessary formality-the grant of it for the mere asking. It may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconne....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court performs a supervisory function in granting its consent to the withdrawal. 8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution." In view of the principles laid down in the aforesaid cases, I have to examine whether the grounds taken by the appellant are tenable. I take up the first ground raised on behalf of the appellant that for the purpose of s. 321 Cr. P.C. there exists dichotomy between the political offences and offences at Common Law and while political offences can be withdrawn on grounds of public policy, public interest, or for reasons of the State, even though there is certainty of obtaining a conviction, no such consideration could ever arise in a prosecution for a Common Law offence or a common case of bribery or forgery. This argument proceeds on the assumptio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rawal is not moved with oblique motive unconnected with the vindication of cause of public justice. If once it is accepted that the application for withdrawal from the prosecution can be made on various grounds and it is not confined to political offences, the contention raised on behalf of the appellant that grounds Nos. (b), (c), (d) mentioned in the application for withdrawal are irrelevant in the instant case will not be tenable. The Indian Penal Code or the Code of Criminal Procedure does not make any such distinction between political offences and offences other than political ones. Even if it is accepted that political offences are not unknown to jurisprudence and other Acts do contemplate political offences, the fact remains that s. 321 Cr. P.C. is not confined only to political offences or social offences, but it applies to all kinds of offences and the application for withdrawal can be made by the Public Prosecutor on various grounds. The only safeguard that should be kept in mind by the Public Prosecutor is that it should not be for an improper or oblique or ulterior consideration, and the guiding consideration should be that of vindication of public justice. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ondent No. 2. The appellant joined the Lok Dal and fought election on Lok Dal ticket after resigning his job. When he became a State Minister in the Ministry of Shri Karpoori Thakur, he came to occupy a big official bungalow at Bailly Road, Patna. In 1980 when the party to which respondent No. 2 belongs came to power, respondent No. 2 became the Chief Minister. The appellant ceased to be a State Minister and was asked to hand over possession of the official residence. Since the appellant refused to vacate, the State Government ultimately resorted to extreme legal step for dispossessing him. This made the appellant feel aggrieved. He vindicated his right by filing a writ petition in the High Court which was eventually decided in his favour. The fact, however, remains that there was no love lost between the appellant and respondent No. 2. When Shri Karpoori Thakur became the Chief Minister in the Janata Party regime, the quickness with which the files moved when a decision was taken to prosecute respondent No. 2 is very significant. From the affidavit of Shri Bidhu Sekhar Banerjee, Deputy Superintendent of Police, Cabinet Vigilance Department, it is apparent that within the course....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and political vendetta sought to oppose the application for withdrawal. In these circumstances it is doubtful whether the appellant was truly representing the public interest. To say that unless the crime allegedly committed are per se political offences or are motivated by political ambition or consideration or are committed mass agitation, communal frenzies, regional disputes, no question of serving a broader cause of public justice. public order or peace can arise is to put limitation on the broad terms of section 321 of the Code. The Public Prosecutor was of the view that as a result of election there was a change in the situation in as much as Respondent No 2's party received the peoples mandate and voted to power and Respondent No. 2 had become the Chief Minister of the State and that the prosecution against the head of the State would have had adverse effect on public interest, including public order and peace and, therefore, he thought it inexpedient for reasons of State and public policy to proceed with the case. It is the Public Prosecutor who has been given the exclusive power to apply for withdrawal and if he in his discretion thinks that it would be inexpedie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the relevant records of the case should be presumed to be correct unless a very strong case is made out for holding that it did not do so and the vaunted remark made by the Court that it has done so is incorrect. In a similar situation this Court in C. Mohapatra's case (supra) observed: "..according to the prosecution, the evidence collected during investigation was not sufficient to sustain the charge against the respondent and the learned Magistrate was satisfied in regard to the truth of this averment made by the Court Sub-Inspector. It is difficult for us to understand how the High Court could possibly observe in its order that the Magistrate had not perused the case diary when in terms the learned Magistrate has stated in his order that he had read the case diary and it was after reading it that he was of the opinion that the averment of the prosecution that the evidence was not sufficient was not ill-founded An attempt has been made on behalf of the appellant to show that the case diary was not with the Court and that it was lying elsewhere and, therefore, he could not have perused the case diary and his observation is not quite correct. This contention cannot be acc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Bihar Government and Solicitor General Shri K. Parasaran showed various similar orders which had been replaced by another order by pasting over the earlier one. So, that part of the argument loses all its force on examination of various similar orders by adopting the same method. The question, however, is whether this antedating of the latter order as 14th May 1975 by pasting it over the earlier order would amount to criminal misconduct within the meaning of s. 5 (1) (d) of the Prevention of Corruption Act and forgery within the meaning of s. 466 of the Indian Penal Code. Insofar as it is material for the purpose of this case, s. 5 (1) (d) of the Prevention of Corruption Act reads: "5. (1) A Public servant is said to commit the offence of criminal misconduct- (a) ........................... (b) ........................... (c) ........................... (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage." The contention on behalf of the appellant is that by changing the order dated 16th May, 1975, respondent No. 2 obtained for Nawal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....6 or 37, or the winding up of a Society it appears to the Registrar that any person who has taken part in the organisation or management of the society or any past or present officer of the society has been guilty of the fact or omission mentioned in clauses (a), (b), (c) or (d) the Registrar may enquire into the conduct of such persons or officers and after giving such officer or person an opportunity of being heard, make an order for surcharge." Therefore, in view of the aforesaid provisions of s. 40 of the Cooperative Societies Act, taking steps for a surcharge is not within the jurisdiction of the State Executive. This may have been another reason for dropping the proceedings for surcharge, if at all, against the officers of the bank. There is yet another reason. The second antedated order does not say a word about dropping the surcharge proceedings ordered by Respondent No. 2 in the earlier order and, therefore, it is difficult to say that Respondent No. 2 had actually dropped the surcharge proceedings against Respondent No. 3 and other offers of the Co-operative Bank. Indeed, surcharge proceedings had been initiated. Surcharge files regarding surcharge case No. 3 of 1975 p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has applied his mind on the relevant materials and his opinion is not perverse, and which a reasonable man could have arrived at, a roving inquiry into the evidence and materials on the record for the purpose of finding out whether his conclusions were right or wrong would be incompetent. That would virtually convert this Court into an Appellate Court setting on judgment. The contention raised by the counsel for appellant that the Public Prosecutor Shri Lallan Prasad Sinha was not competent to apply for withdrawal has not been accepted by my brothers Tulzapurkar and Baharul Islam JJ. and I respectfully agree with them. If the Public Prosecutor thought that the continuance of the prosecution in the circumstances would only end in an exercise in futility, he was fully justified in moving the application for withdrawal. The only question is whether he has applied his mind and he was not actuated by any extraneous consideration or improper motive. It was sought to be argued on behalf of the appellant that the Public Prosecutor has acted at the behest of the Government and he did not apply his own mind. Reference was made to the letter sent by the Government to the Public Prosecu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....circumstances that the file was sent to Respondent No. 2 in his capacity as Chief Minister in pursuance of the earlier desire of the then Chief Minister, Shri Abdul Gafoor, and passed the following orders: "In order to recover the money from some of the loanees of the Patna Urban Co-operative Bank criminal cases were instituted against them. Action should be taken immediately for the withdrawal of the cases against those loanees who have cleared the loan in full and proper instalments for payment of loans should be fixed against those who want to repay the loan but due to financial incapacity are unable to make payment at a time and thereafter necessary further action should be taken." In this state of affairs it cannot be said that Respondent No. 2 was out to obstruct the criminal proceedings. The facts that the prosecution, if ordered, will start after a gap of about eight years cannot be lost sight of. In the view taken by me in the earlier part of the judgment that no prima facie case in my opinion has been made out under s. 466 of the Indian Penal Code and s. 5 (1) (d) of the Prevention of Corruption Act and the fact that the High Court in revision agreed with the vie....